|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
South African Law Commission |
[Database Search] [Name Search] [Previous] [Next] [Download] [Help]
6.1 Specific rules regarding application of customary law in cases of succession and civil or Christian marriages are contained in the Black Administration Act 38 of 1927 and in obscure and confusingly worded regulations passed under it. These provisions (most dating from 1927) did little more than repeat nineteenth and early twentieth-century enactments from Transkei and Natal, and nearly all are now obsolete. What is more, because the only criterion for applying customary law is race, they are unacceptably discriminatory.
6.2 A general code of succession law would obviously be desirable in South Africa, not only in order to update and reform the customary law of succession but also to bring it into line with the Bill of Rights.[1] The Law Commission has in fact published an Issue Paper on this subject.
6.3 Compiling such a code obviously involves difficult policy decisions regarding the present rules of both customary and common law on intestate succession, how these rules are to be reconciled and to what extent they comply with the Bill of Rights. Until a new and integrated law is achieved, conflicts between common and customary law will persist and the need will remain for suitable choice of law rules.
6.4 As in other cases of conflicts between customary and common law, what law to be applied to a matter of intestate succession must in the final analysis depend upon the deceased's cultural affiliation. The current statutory choice of law rules take the form of a deceased's marriage together with his or her matrimonial property regime as invariable indicators of cultural affiliation. Hence, if someone had married by civil or Christian rites and in addition had entered into an antenuptial contract (or had otherwise ensured that the marriage was in community of property), the common law will apply to devolution of his or her estate.
6.5 The assumption underlying these indicators was that the form of the marriage and the property regime were culturally marked. Thus, by using these forms, an individual was presumed to have tacitly intended to be bound by the law with which they are associated. While reliance on form injects a high degree of certainty into the choice of law process, it has the disadvantage of oversimplifying issues. In other words, the form of a juristic act is not an infallible guide to an individual's actual expectations. Many people who marry by Christian rites have no intention of living according to the common law.[2] Furthermore, whatever justification the choice of law rule may find in a deceased's presumed intention, it seems arbitrary in relation to the spouses' children and family, who had nothing to do with the decision to marry according to particular rites.[3]
6.6 Most of the responses received to the Issue and Discussion Papers were concerned with the substance of the law of succession or with the procedures for administering deceased estates.[4] Professor A J Kerr (Rhodes University) expressed a general concern that we should avoid creating a system whereby one law applies to those who can afford to go to court and another to those who cannot. He also felt that the family should have a role in distributing estates, as it does in customary law, when the deceased head of a polygynous household has not divided his property amongst his various houses.
6.7 On the issue of choice of law, Professor Kerr noted that, because most estates are dealt with by public service officials and not by the courts, clear guidance in choice of law was necessary. The Zion Christian Church and The Women's Lobby felt that the estates of those who, from their lifestyles, indicated a clear propensity to live according to African custom should devolve according to customary law. The Committee on Constitutional Affairs for Northern Province House of Traditional Leaders made a similar submission: that, instead of using wills, the distinctively customary modes of distributing estates should be retained.
6.8 The Gender Research Project (CALS), on the other hand, felt that the form of marriage and lifestyle could lead to inconsistent and irrational results in choice of law, since the applicable law could be dictated by an individual's class and financial position rather than a more meaningful connection with a cultural tradition.[5] Professor Kerr, too, felt that care should be taken if a law was to be chosen after a person had died on the basis of factors the deceased might not have considered.
6.9 The law to be applied to the devolution of estates (including immovable property) of Africans who die without wills is currently governed by choice of law rules contained in reg 2 of Regulations[6] issued under the Black Administration Act.[7] From the intricate provisions of these regulations, the following situations should be distinguished.
6.10 Regulation 2(a) provides that:
`If the deceased was, during his lifetime, ordinarily resident in any territory outside the Republic other than Mozambique, all movable assets in his estate after payment of such claims as may be found to be due shall be forwarded to the officer administering the district or area in which the deceased was ordinarily resident for disposal by him.'
This regulation - one obviously rooted in the labour policies of colonialism and apartheid - was designed to cater for the large migrant work force that used to be recruited from South Africa's neighbouring states. Thus movable assets in the estates of Africans who are ordinarily resident in countries outside South Africa (except Mozambique) are to be sent for distribution to the official administering the area in which the deceased was ordinarily resident. No doubt, the intention behind reg 2(a) was to allow South African officials to avoid the complexities of administering small estates under a foreign law.
6.11 The mass recruitment of labour from abroad has, of course, ended, and with it the reason for subjecting foreign residents to a special statutory regime. Normal conflict principles should therefore be applied, namely, the rules of private international law. Under this system, devolution of a deceased foreigner's estate would be governed by the law of that person's last domicile.[8]
6.12 The Council of South African Banks noted that executors would be reluctant to administer small estates if a complex set of choice of law rules were involved. If we accept what the Council says - and it is no doubt quite correct - then special rules should be made for administering small estates, regardless of the culture, residence, domicile or nationality of the deceased. Such an undertaking falls outside the scope of this Report, however.
6.13 Regulation 2(b) provides that:
`If the deceased was at the time of his death the holder of a letter of exemption issued under the provisions of section 31 of the Act, exempting him from the operation of the Code of Zulu Law, the property shall devolve as if he had been a European.'
Persons exempted from customary law generally become subject to the common law,[9] which would include the statutory and common-law rules of intestate succession. Regulation 2(b) gives the misleading impression that exemption can be claimed only from the provisions of the KwaZulu/Natal Codes. The ambit of s 31 of the Black Administration, which in fact governs this procedure, is far broader: any person in the country may apply for exemption.
6.14 Under s 23 of the Black Administration Act, movable house property must devolve according to customary law and the devolution of land held under quitrent tenure is governed by statutory tables of succession. All other property may be devised by will.
6.15 In the absence of a will, succession to such property (which would normally be so-called `family property') is subject to choice of law rules laid down in the remaining provisions of reg 2.
`(c) If the deceased, at the time of his death, was -
(i) a partner in a marriage in community of property or under antenuptial contract; or
(ii) a widower, widow or divorcee, as the case may be, of a marriage in community of property or under antenuptial contract and was not survived by a partner to a customary union entered into subsequent to the dissolution of such marriage,
the property shall devolve as if the deceased had been a European.'
(d) When any deceased Black is survived by any partner -
(i) with whom he had contracted a marriage which, in terms of subsection (6) of section 22 of the Act, had not produced the legal consequences of a marriage in community of property; or
(ii) with whom he had entered into a customary union; or
(iii) who was at the time of his death living with him as his putative spouse;
or by any issue of himself and any such partner, and the circumstances are such as in the opinion of the Minister to render the application of Black law and custom to the devolution of the whole, or some part, of his property inequitable or inappropriate, the Minister may direct that the said property or the said part thereof, as the case may be, shall devolve as if the said Black and the said partner had been lawfully married out of community of property, whether or not such was in fact the case, and as if the said Black had been a European.
(e) If the deceased does not fall into any of the classes described in paragraphs (a), (b), (c) and (d), the property shall be distributed according to Black law and custom.'
In broad terms, the relevant system is selected by combining two connecting factors: the form of a deceased's marriage and his or her matrimonial property system. These factors are presumed to reflect the deceased's general cultural orientation.
6.16 Courts and legislatures have often taken marriage by civil or Christian rites as an invitation to apply the common law to the spouses' personal status.[10] Before common law becomes applicable to intestate succession, however, reg 2(c) stipulates that the deceased must also have been married in community of property. This additional connecting factor saves people who married by civil or Christian rites from being caught unawares by the law associated with their marriage.[11] It follows that, if common law is to govern devolution of an estate, the deceased must have deliberately chosen a community of property regime (which would be done by making a prenuptial declaration or executing an antenuptial contract) and, further, that the deceased must not have been party to a valid, subsisting customary marriage.[12]
6.17 There is merit in using the form of marriage together with the nature of a deceased's matrimonial property system to designate the applicable law. These factors are easy to ascertain and they can be readily applied by executors and others who have to distribute deceased estates. None the less, this somewhat complicated choice of law rule presents several problems.
6.18 The first is a general objection to using the form of a juristic act, such as marriage, as an invariable guide to a deceased person's actual cultural orientation. Apart from the fact that a marriage in church does not necessarily indicate the spouses' intention to live according to the common law, a deceased might have decided to pursue a different culture after marrying. Flexibility is therefore necessary to make allowance for exceptional cases (not to mention succession to the estates of unmarried persons).
6.19 Secondly, for purely legal reasons, few people comply with all the requirements specified in reg 2(c). Before 2 December 1988, civil and Christian marriages by Africans did not automatically produce a community of property, because s 22(6) of the Black Administration Act provided that their marriages would be automatically out of community of property, unless the spouses had made a prenuptial declaration to vary this consequence.[13] Such declarations were seldom made.[14] It is true that since 1988 civil and Christian marriages contracted by Africans have been in community of property,[15] but marriages entered into by Africans before 1988 are still out of community.[16] Intestate succession to the estates of these spouses is therefore still governed by customary law.
6.20 The third problem concerns possible prejudice suffered by the widows of civil or Christian marriages under the customary system of succession.[17] A woman would have spent her entire married life subject to the common law, but, when her husband dies, she reverts to the position of a customary-law widow. This eventuality might not have been contemplated by the spouses, especially if they had deliberately married by civil rites to escape the strictures of customary law.
6.21 Whether a widow actually suffers prejudice under (an unreformed) customary law is perhaps a moot question. Professor Kerr, for instance, pointed out that widows have a right to land[18] and Dr A M S Majeke (University of Fort Hare) claimed that widows were not unduly discriminated against, since they had a large measure of control over the deceased estate.[19] Nevertheless, according to the official version of customary law, widows are dependent for their support on maintenance paid by the heir,[20] provided that they remain with the estate.[21]
6.22 A fourth, technical problem arises where a deceased, after having dissolved an earlier marriage,[22] contracted a civil or Christian marriage out of community of property. Do surviving sons of both marriages qualify as heirs of `house' property? The marriages could be treated as separate and distinct or they could be treated as two polygynous unions, in which case the civil marriage would be deemed to have established a `house'.
6.23 The most equitable approach to solving such a convoluted problem would have been to regard the two marriages as constituting two families and then to allow the heir of the civil marriage to inherit only the property acquired during that marriage;[23] but there are authoritative decisions going the other way.[24] Quite apart from the problem of deciding who should inherit, it could be almost impossible to determine what property was acquired during which marriage. For instance, if property from the first marriage were traded and increased during the second, who would be entitled to the increase?[25]
6.24 The fifth, and the most serious, problem is that the basis for this reg 2(c) may well fall away. If the Law Commission's proposals in its Report on Customary Marriages are accepted, all future customary marriages will be deemed to be in community of property. (This rule may be varied by spouses of polygynous unions and those who execute antenuptial contracts.) Not only will the community of property regime contradict the philosophy underlying the current choice of law rule, but the nature of a matrimonial property regime will no longer offer any particular indication of a deceased's cultural orientation.
6.25 Customary law applies to determine succession if a deceased is survived by a customary-law spouse or children (or remoter issue) or if the deceased had married by civil or Christian rites but out of community of property.
6.26 Probably because of its intricate wording, this provision does not cover all the situations to which it was obviously intended to apply. What of a person who had married by customary law, but who died leaving no surviving spouse or children? Presumably, a contrario the terms of the section, the common law would apply. What of a deceased who had divorced his or her spouse? Presumably, customary law still applies to the estate, even though a critical choice of law factor - the customary marriage - is missing.
6.27 When application of customary law under reg 2(d) seems inappropriate or inequitable, potential beneficiaries can petition `the Minister' - since abolition of the Department of Development Aid it is not clear which Minister is contemplated - for a directive that the common law be applied instead.[26] While this saving provision may afford the less affluent a cheap method for determining the law applicable to a deceased estate, it has the disadvantage of reducing choice of law to an administrative process. In other words, although a ministerial directive may avoid the costs of litigation, this type of procedure tends to preclude argument from all interested parties.[27]
6.28 Formerly in South Africa, a civil or Christian marriage would automatically nullify an existing customary union. For instance, if a man married by customary law were to marry another woman by civil rites, the second marriage would automatically extinguish the first.[28] Section 22(7) was inserted into the Black Administration Act in an attempt to alleviate some of the hardships inflicted on the `discarded' customary-law wife by this rule. This section provided that:
`No marriage contracted after the commencement of this Act [1 January 1929] but before the commencement of the Marriage and Matrimonial Property Law Amendment act 1988 [2 December 1988] during the subsistence of any customary union between the husband and any woman other than the wife shall in any way affect the material rights of any partner of such union or any issue thereof, and the widow of any such marriage and any issue thereof shall have no greater rights in respect of the estate of the deceased spouse than she or they would have had if the said marriage had been a customary union.'[29]
6.29 By preserving the property rights of a `discarded' wife, s 22(7) had the unfortunate side-effect of reducing the status of the civil-law wife to that of a customary-law widow. Thus, on the death of a husband, both the civil- and customary-law wives (and their progeny) had the same claims to his estate. Customary law revived, as it were, to govern devolution of the deceased estate.[30]
6.30 This is a paradoxical situation. After the law had declared that the customary wife was no longer married, she might many years later regain her status. At the same time, the civil-law spouse would find her position suddenly downgraded to that of a customary-law widow (after enjoying, again possibly for many years, the benefits of common law). By seeking to eliminate one evil, s 22(7) succeeded in inflicting equal harm on an innocent party. This curious regime continues to apply to the victims of dual marriages contracted between 1929 and 1988.
6.31 Can a man, who terminated his customary marriage by a civil or Christian marriage, protect his second spouse by making a will to institute her as heir to property acquired during the civil marriage? A concerned husband might in this way avoid the full rigour of s 22(7) by ensuring that his common-law widow was not subjected to an unmitigated customary-law regime. Alternatively, if he did not make a will, could his widow appeal to the Minister under reg 2(d) for an order that the common law apply?
6.32 Professor Kerr maintains that both these courses of action are available,[31] in part because the legislature did not lay down which system of law was to govern the property. Another reading of the regulations is, however, possible. Because s 22(7) is explicit in saying that the civil marriage shall not in any way affect the material rights of the customary wife and that the one widow's rights shall not be preferred to the other's, a husband could not defeat the customary-law wife's rights. An appeal to the Minister might also be excluded, because reg 2(d) is primarily concerned with choice of law and it does not appear to encompass the problems generated by s 22(7).
6.33 Because choice of law in regs 2(c) to (d) is based, in the first instance, on the form of a deceased's marriage, the rules do not cater for those who never married.[32] Instead, reg 2(e) applies: if a deceased does not fall into any of the previous categories, customary law governs devolution of his or her estate.
6.34 The drafters of the regulations evidently assumed that all Africans are automatically subject to customary law, and that, if they wanted to avoid application of this law, they should have executed a will.[33] While this assumption might in some cases be well-founded, there must be many situations where, on the ground of general cultural orientation, application of the common law would be more suitable.
6.35 The KwaZulu/Natal Codes contain special provisions that override the Black Administration Act and the regulations outlined above. The Codes stipulate that estates of Africans married by civil or Christian rites, regardless of the matrimonial property system, are to devolve according to common law.[34]
6.36 Section 23(9) of the Black Administration Act provides that:
`Whenever a Black has died leaving a valid will which disposes of any portion of his estate, Black law and custom shall not apply to the administration or distribution of so much of his estate as does not fall under sub-section (1) or (2) and such administration and distribution shall in all respects be in accordance with the Administration of Estates Act, 1913 (Act No 24 of 1913).'
It would be logical to assume that, if a will applied to only portion of someone's estate, the customary law of succession should govern devolution of the intestate balance. However, s 23(9) has been interpreted to mean that the common law must apply to the devolution of any property not governed by a will.[35] Although Professor Kerr supports this construction, a closer reading could suggest application of customary law. The section speaks only of `administration and distribution' of an estate being subject to the Administration of Estates Act (and thus common law). The devolution of property is an entirely separate issue.
6.37 As indicated earlier, if a common code of succession is to be adopted, conflict problems will disappear. In fact, a good reason for embarking on a reform of the law would be to clear up the many contradictions, unresolved problems and ambiguities which bedevil the present medley of choice of law rules contained in the Black Administration Act and the regulations issued under it. Comments on how the new succession law should be formulated obviously fall outside the scope of this Report, but certain recommendations are needed on the existing choice of law rules.
6.38 Before proceeding, it must be noted that improvements in choice of law will do nothing to alleviate social problems unless attention is also given to the substantive law in both succession and marriage. As Judge Albie Sachs said, the position of widows under customary law needs urgent attention. But, if widows are to benefit from a new rule entitling them to inherit from their husbands, women must be given full proprietary capacity. Similarly, if persons subject to customary law are to benefit from a statutory reform such as the Maintenance of Surviving Spouses Act,[36] customary marriages must be given full recognition on a par with civil and Christian marriages.
6.39 The following changes are recommended for the current choice of law rules. The special rule for foreigners in reg 2(a) should be deleted. Its removal from the statute book will have the effect of subjecting the devolution of estates owned by foreign domiciliaries to the ordinary rules of private international law.
6.40 If the proposal to abolish the exemption procedure is accepted, then reg 2(b) should also be deleted. If the exemption procedure is to be retained, the regulation should be amended by replacing the term `Code of Zulu Law' with `customary law' and by replacing the phrase `as if he had been a European' with `according to the common law'.
6.41 If a common code of succession law is not accepted within the foreseeable future, then choice of law rules must be provided to regulate application of customary law to intestate estates. The form of marriage is a useful indication of the appropriate law, but it must be subject to a qualification aimed at discovering the deceased's actual cultural orientation.
6.42 Once exceptions to the basic choice of law (based on the form of marriage) have been admitted, the present regulation allowing an appeal to the Minister must be repealed, since the courts, not the executive should control the choice of law process.
6.43 The legislature's laudable attempt to protect so-called `discarded' wives of marriages contracted before 1988 is more likely to do harm than good. If a customary widow's rights are to be protected, innocent parties, namely, the civil-law wife and children, are inevitably prejudiced. To make the best of a bad situation - and it should be noted that a minimal number of women are now affected by this provision - it is preferable to abandon the customary marriage. For all legal purposes the union was extinguished (and may in reality have been terminated many years previously) in favour of the second marriage. This approach would involve repealing 22(7) of the Black Administration Act.
6.44 The position of people who die partially testate and partially intestate should be clarified. The ambiguously worded s 23(9) of the Black Administration Act should be amended to provide that devolution of the intestate portion of the testator's estate should be governed by customary law, unless the testator intended the common law to apply.
[1] The Gender Research Project (CALS), for instance, expressly supported proposals for a general code of succession law.
[2] See, for example, Smith (1924) 5 NLR 102 at 104. And, of course, many people marry according to both customary and Christian rites.
[3] See Visser (1982) 15 De Jure 137.
[4] Thus A M Moleko considered that the statutory regime of intestate succession should be applied to the devolution of all estates, while the Principal State Law Adviser (Gauteng Provincial Government) asked for administration practices under the Black Administration Act to be brought into line with the Administration of Estates Act.
[5] Which, as the Gender Project said had happened in two Lesotho cases Mokorosi v Mokorosi & others 1967-70 LLR 1 and Hoohlo 1967-70 LLR 318, cited above in footnote 126.
[6] The Regulation commences: `If a Black dies leaving no valid will, so much of his property, including immovable property, as does not fall within the purview of subsection (1) or subsection (2) of section 23 of the [Black Administration] Act shall be distributed in the manner following ....' The existing regulations (GN R200 of 1987) are substantially the same as those issued in 1929. The first set of regulations was amended in 1947, repealed and replaced in 1966, and then again repealed and replaced in 1987. See Visser (n254) 133-5 on which version of the regulations should be applied in particular cases.
[7] Section 23(10) of Act 38 of 1927. Section 1(4)(b) of the Intestate Succession Act 81 of 1987 provides that the Act will apply to intestate estates `in respect of which section 23 of the Black Administration Act does not apply'.
[8] Forsyth Private International Law 340.
[9] See above para 1.94.
[10] See above para 4.8.
[11] In other words, choice of law is also based on something additional and active: Visser (n254) 130.
[12] Visser (n254) 132 identified the following anomaly: if a person had married first by customary law, had then contracted a marriage by civil rites in community of property, had dissolved the second marriage, and had then died survived by the customary-law wife, both reg 2(c) and (d) would seem to be applicable.
[13] Although this section did not exclude their power to execute an antenuptial contract.
[14] See Coertze Die Familie-, Erf- en Opvolgingsreg van die Bafokeng van Rustenburg 241 and Burman in Hirschon Women and Property/Women as Property 124.
[15] When the Marriage and Matrimonial Property Law Amendment Act 3 of 1988 repealed s 22(6) of the Black Administration Act and brought African marriages into line with earlier reforms to the common law promulgated by s 25(1) of the Matrimonial Property Act 88 of 1984. This rule could be varied only by antenuptial contract.
[16] The amending legislation was not made retrospective, although s 4 of Act 3 of 1988 (inserting s 25(3) into Act 88 of 1984) allowed spouses, whose matrimonial property system was governed by s 22, to harmonize the consequences of their marriage with the new law by execution and registration of a notarial contract.
[17] To the extent, of course, that customary law prejudices widows. Cf Mthembu v Letsela & another 1997 (2) SA 936 (T).
[18] Which he describes in more detail in Customary Law of Immovable Property and of Succession ch 11.
[19] Hence Dr Majeke said that widows are not dependent on the heir for support, because the estate is deemed family property to be run by a corporate unit (in which the widow is the most powerful decision-maker). It follows that death of a family head does not break up an estate, since property is not inherited by an individual but by the family.
[20] Mnani 1977 BAC 264 (S). See Kerr Customary Law of Immovable Property 171.
[21] Sonamzi v Nosamana 3 NAC 297 (1914), Mavuma v Mbebe 1948 NAC (C&O) 16 and Tulumane v Ntsodo 1953 NAC 185 (S). Although, once customary marriages have full recognition, a widow would qualify under the Maintenance of Surviving Spouses Act 27 of 1990 for maintenance from the estate, free of any restrictions imposed by customary law.
[22] Which might have been by customary, civil or Christian rites.
[23] Which was the decision in Mboniswa 1952 NAC 235 (S) at 239-40. See too Moloto 1953 NAC 91 (NE). This approach was advocated by Francis 1967 Acta Juridica 152-6 and Kerr Customary Law of Immovable Property 170.
[24] The most persuasive authority is the Appellate Division's decision in Ex parte Minister of Native Affairs: In re Magqabi v Magqabi 1955 (2) SA 428 (A). Because this case was concerned with s 23(2) of the Black Administration Act, however, it can be distinguished. When the problem was first considered in Dlalo v Ndwe & others 4 NAC 189 (1922), the court held that the eldest son of the first marriage (which happened to be a customary union) inherited the property acquired during that union and the eldest son of the second union (a civil marriage) inherited property acquired during that marriage. See too Tonjeni 1947 NAC (C&O) 8.
[25] Kerr Customary Law of Immovable Property 170.
[26] Whether this provision is still applicable, in view of the Department's abolition, is questionable.
[27] Kerr Customary Law of Immovable Property 171 and Bennett Application of Customary Law 170.
[28] Nkambula v Linda 1951 (1) SA 377 (A).
[29] This is the version substituted by s 1 of Act 3 of 1988.
[30] Which meant that the civil-law widow was entitled to no more than maintenance out of the estate: Tukuta & another v Panyeko 5 NAC 194 (1927) and Khabane 1952 NAC 295 (C) at 298.
[31] Kerr Customary Law of Immovable Property 173.
[32] Visser (n254) 130.
[33] And an appeal to the Minister for application of the common law instead is precluded, since this device is permitted only under reg 2(d).
[34] See ss 79(3) and 81(5) of the KwaZulu/Natal Codes, Act 16 of 1985 and Proc R151 of 1987, respectively. The Codes incorporate the Succession Act 13 of 1934, presumably as amended by the Intestate Succession Act 81 of 1987.
[35] A choice of law that is vindicated on the basis of the testator's intention: Visser (n254) 124-5. Section 1(4)(b) of the Intestate Succession Act 81 of 1987 does not take the matter much further, since it applies only to `any part of an estate which does not devolve by virtue of a will or in respect of which s 23 of the Black Administration Act does not apply'.
[36] 87 of 1990.
SAFLII:
|
|
Terms of Use
|
Feedback
URL: http://www.saflii.org/za/other/zalc/report/1999/4/1999_4-CHAPTER-6.html